CVS v SV

The applicant and respondent were married on 3 January 2009 out of community of property without accrual and have two minor children aged 10 and 12. Pending divorce proceedings, the applicant applied to vary an interim maintenance order granted on 15 June 2023 by Pangarker AJ, which had ordered him to pay R42,000 per month for the respondent and minor children as well as ancillary expenses such as medical and educational costs. At the time of making the tender underlying that order, the applicant was aware that the business employing him, B[...] M[...] (Pty) Ltd, was being sold and that he would become unemployed. The business was subsequently sold in December 2023. The applicant's Val de Vie property was also sold, yielding proceeds of approximately R6.98 million after capital gains tax. The applicant invested R1.8 million of the proceeds into his children's investment accounts and R2 million into a bond account of a property holding company of which he is a director. The applicant alleged his income had ceased since December 2023 and that only R418,058.63 remained of the investment account, which would be depleted by December 2024. He sought to reduce maintenance from R42,000 to R20,000 per month, to remove the respondent and children from his medical aid, and to cease liability for medical and educational expenses. He also claimed he intended to use the R2 million capital to start a new business. The respondent opposed, arguing the applicant engineered his financial position and failed to make full disclosure.

• Whether the applicant demonstrated a material change in his financial circumstances as required by Rule 43(6) to warrant a variation of the existing interim maintenance order.
• Whether the applicant made full and frank disclosure of his financial affairs (uberrimae fidei) as required in Rule 43 applications.
• Whether the applicant can rely on capital depletion and proposed business investment to reduce his maintenance obligations when sufficient capital remains available.
• What is in the best interests of the minor children concerning the variation of maintenance pendente lite.

The applicant's Rule 43(6) application was dismissed. By agreement between the parties, shared residency of the minor children was ordered as detailed in the notice of motion. The Family Advocate was directed to investigate the shared residency arrangement. The applicant was ordered to pay the costs of the application, including costs of counsel on Scale B.

For a successful Rule 43(6) variation application based on a change in financial circumstances, the applicant must demonstrate a material change that was not foreseen or anticipated at the time of the original order. Where the alleged change was already known and factored into the original tender, it cannot constitute a material change. An applicant in Rule 43 proceedings bears a duty of utmost good faith (uberrimae fidei) to make full and frank disclosure of all material information regarding their financial affairs. Failure to do so means the applicant is not before the court with clean hands, justifying refusal of relief on that ground alone. Maintenance obligations for children, protected by section 28(2) of the Constitution, must prevail over a parent's desire to invest capital in new business ventures, and inroads on capital may be justified to meet maintenance obligations when income is insufficient.

The court noted that the centrality of the child's best interests must guide the court in cases of this nature and expressed concern that the applicant was pleading poverty despite having deposited R2 million into a bond account and R1.8 million into children's investment accounts. The court also noted the applicant's failure to explain why a third party (Bergzicht) was paying his medical aid premiums and his failure to disclose that he co-owns the property in which he resides with his brother. The court stressed that Rule 43(6) must never be used as a mechanism to unscramble what was already considered and dealt with during the original Rule 43(1) application.

This judgment reinforces the strict interpretation of Rule 43(6) and confirms that variation applications cannot be used to revisit circumstances already considered in the original order. It underscores the stringent duty of full and frank disclosure (uberrimae fidei) in Rule 43 applications and affirms that non-disclosure or dishonest engineering of financial circumstances will result in dismissal. The case further highlights the paramountcy of children's best interests in maintenance matters, establishing that maintenance obligations take precedence over parental business investments and that available capital must be utilised for maintenance before a reduction can be granted.